The Supreme Court is Not Our Friend

July 9, 2012

The relationship between conservatives and the Supreme Court is rather like that between Charlie Brown and Lucy Van Pelt in autumn. She always holds the football as if Charlie Brown has a fair shot at kicking it, and then she always snaps the ball away at the last moment. How many times has this happened? It has been going on since the New Deal.

When FDR began pushing through quasi-fascist policies administered by men who expressed a dreamy admiration for what Mussolini had been doing to "solve" Italy's problems, the Supreme Court actually functioned in its only useful constitutional role: as a guardian against the power lust of the other branches of the federal government.

Our own "Duce," FDR, planned to pack the Supreme Court by adding more justices than the nine on the bench in order to get decisions which allowed his vast empire of federal programs, with all the attendant political power from patronage and perks, to proceed unmolested by an independent judiciary. The court-packing scheme failed, but the impact of his plan worked: the Supreme Court became docile. "A switch in time saves nine" was the quip at the time.

Since then, the Supreme Court has consistently tacked left and allowed federal power to extend into almost every area of public life. Beyond that, the Supreme Court has been an active agent of leftism in many areas. It was not the president or Congress which stripped from state legislatures the power to regulate abortion. It was, instead, the Supreme Court, in an opinion written by one of those notional "Republican" justices which made prenatal infanticide a constitutional right under most circumstances.

It was also the Supreme Court which, fifty years ago this June, extended the judicial policy of purging religion from public schools to the point that a nondenominational prayer was verboten. How innocuous was that prayer? Read here. Although this is sometimes presented as a logical extension of the First Amendment, it was not at all. The First Amendment, of course, speaks only of Congress, not of the states.

Instead, the Supreme Court invented out of whole cloth the "Incorporation Doctrine," which provided that every guarantee in the federal Bill of Rights was incorporated into the Due Process Clause of the Fourteenth Amendment. That sounds harmless enough until one recalls that each state already had a state bill of rights which guaranteed freedom of religion. The Supreme Court, quite on its own, was federalizing every personal liberty guarantee which states had already been providing. Moreover, there simply were no cases of real abuse by states of freedom of religion in schools.

A whole slew of laws before ObamaCare created giant bureaucracies with near-omnipotent powers with not so much as a peep out of the Supreme Court. The EPA, OSHA, and the NRLB (which recently threatened to keep Boeing from relocating from unionized Washington State to right-to-work South Carolina), as well as whole federal departments, like the Department of Education, which have only the most surreal connection with Article I powers of Congress, have grown with no real check.

Why in the world would any sane conservative trust the Supreme Court with our liberties? There are many reasons to believe that the Supreme Court will just grow worse.

It is a Washingtonian institution, and moreover a cloistered and secretive organ of Washington power. There is a reason why the most leftist electoral district in America, the only one which Gallup shows has more liberals than conservatives, is the District of Columbia. Even Rhode Island and Vermont are wildly conservative compared to D.C. Our federal district reeks of accumulated and guarded power. Justices with the best of intentions inevitably begin to assume the character of those who inhabit this peculiar and distorted milieu.

The legal system has also been largely hijacked by the left. The American Bar Association used to be an objective and broad-based organization, but it has not been so balanced and unbiased for decades. Lawyers have a natural interest in moving power into courts, and judges do, too, so the strong current among judges and attorneys is to accrete more and more power to the judicial branch.

Craven politicians have an equally vested interest in this process. Much of the work of leftism is highly unpopular, and elected officials who support those policies would lose elections even in strongly Democrat districts and states were they to voice said support. But when a senator or congressman can claim that he is powerless to allow a moment of silence at football games, then he is insulated from popular wrath.

The left also puts cadres on the Court, while conservatives foolishly try to put jurists on the Court. When is the last time that Ginsberg, Sotamayor, Kagan, or Breyer voted on the conservative side of an important decision? How about "never"? The same was true of Douglas, Black, and the other leftist elements of the Warren Court.

What can we do? We could seek a constitutional amendment which created a different system for interpreting the Constitution, like a college of the fifty governors. We could seek our own court-packing, when we get the chance; it seems to get the Court's attention. Congress could also do what Newt suggested last year (when so many people thought him nuts) and exercise its regulatory power over the federal bench by calling judges and justices to answer for their decisions.

Whatever we do, one thing is clear: the next time Miss Van Pelt holds the football for us, we'll be best-served not to start running toward it.